March 28, 2011

The road less traveled

As the Commonwealth's affordable housing bank, we have supported Chapter 40B, the state's affordable housing law, for many years. That's been more than a mildly controversial proposition from time to time. Of course, along the way we have also backed common-sense changes to its implementing regulations, but we remain convinced that the underlying concept behind 40B is sound and worthy of endorsement.

A recent decision by MassHousing to reject a Chapter 40B proposal in Reading helps to illustrate, however, why new 40B housing isn't always the answer. This decision highlights one of the common sense changes in the 40B regulations that the Agency supports. It also offers the potential for a new path, one that would steer away from much of the controversy that has historically been associated with Chapter 40B.

The case in point involved a proposal to build 20 new affordable home ownership units on 2.16 acres. While new housing stock is needed, there were two primary reasons MassHousing rejected this proposal.

First, Reading has made a good-faith effort to increase its affordable housing stock, most notably by approving two Smart Growth Overlay Zoning Districts under Chapter 40R. These districts – one of which is located in close proximity to where the 20 new units would have been located – permit 458 new units by right. One of the points of emphasis of the Comprehensive Permit Guidelines and Regulations issued in 2008 is that Subsidizing Agencies like MassHousing should, when they are considering applications for site approval, take into account "municipal actions previously taken to meet affordable housing needs." Reading's actions in this instance were substantial.

Second, the parcel of land already included two existing homes that fit in well with the pattern of development in the surrounding neighborhood. To "de-construct" this well-established neighborhood and replace the existing homes with 20 new units of housing, especially in the context of a constrained site plan, was in our opinion ill-advised. We also viewed the site plan as inconsistent with the 2008 guidelines and regulations.

A combination of these factors led us to conclude that a site approval letter should not be issued in this instance.

To be sure, there is still a great need for new, affordable housing. But the Reading case illustrates that there are situations where a new Chapter 40B development is not the best choice, especially where local officials have already shown a strong commitment to affordable housing through channels other than 40B.

It's still too early to tell whether a proactive, planning-based strategy such as Reading's will supplant the more traditional reactive, litigation-based approach that has been the hallmark of 40B controversies through the years. One reason for optimism? Planners are less expensive than lawyers.